68-11-1004 - Prerequisites to including name on registry Notice to alleged perpetrator Removal of name from registry. - Tennessee Statutes

68-11-1004. Prerequisites to including name on registry Notice to alleged perpetrator Removal of name from registry.

(a)  As used in this section, unless the context requires otherwise:

     (1)  “Criminal disposition” means the disposition of criminal charges constituting an offense against a vulnerable person, as that term is defined by this subsection (a), either by conviction, or by pre-trial diversion authorized by any court pursuant to title 40, chapter 15, or by an order deferring further proceedings and placing an individual on probation by post-trial diversion issued pursuant to title 40, chapter 35;

     (2)  “Exploitation” means, in cases that are investigated by the department of human services, the improper use by a caretaker of funds that have been paid by a governmental agency to an adult or to the caretaker for the use or care of the adult;

     (3)  “Misappropriation” means any taking, possession or use of the property of a vulnerable person the elements of which constitute any criminal offense involving such property, or that constitute a violation of a fiduciary duty of a caretaker of a vulnerable person;

     (4)  “Offense against a vulnerable person” means any act that constitutes abuse, neglect, misappropriation or exploitation of the property of a vulnerable person even if the act does not constitute a criminal act, or any crime the elements of which constitute abuse, neglect, or misappropriation or exploitation of the property of a vulnerable person;

     (5)  “Property” means all interests of any type in real property, and any interests of any type in personal property whether in monies or financial instruments of any type, goods, furnishings, and similar property; provided, however, that for purposes of reporting to the registry established by this part, property shall only consist of funds paid by a governmental agency to an “adult” as defined in § 71-6-102, if the report of abuse, neglect, misappropriation or exploitation is investigated by the department of human services pursuant to title 71, chapter 6, part 1; and

     (6)  “Vulnerable person” means anyone who:

          (A)  Is under eighteen (18) years of age; or

          (B)  Is eighteen (18) years of age or older and, by reason of advanced age or other physical or mental condition, is vulnerable to or has been determined to have suffered from abuse, neglect or misappropriation or exploitation of property and is or has been:

                (i)  The subject of any report of harm, abuse, neglect, or exploitation of property made to any state agency or investigative authority with responsibility to investigate those reports pursuant to title 37, chapter 1, parts 1 or 6, title 71, chapter 6, part 1, or pursuant to any other provision of law or regulation;

                (ii)  Receiving protective services from a state agency pursuant to law;

                (iii)  The victim of any criminal offense that constitutes abuse, neglect, or misappropriation or exploitation of property;

                (iv)  In the care of either a state agency, an entity that is licensed or regulated by a state agency, or in the care of an entity providing services under the provisions of a contract between that entity and a state agency; or

                (v)  Receiving services in the person's home from any agency licensed or regulated by or contracted to a state agency, including, but not limited to home and community-based services, home health care, or other heath care-related services provided through state or federal funds to assist persons to remain in their homes.

(b)  (1)  Any state government agency that finds that an individual has committed abuse, neglect, or misappropriation or exploitation of the property of a vulnerable person shall notify the department of health concerning such individual in accordance with subdivision (b)(2). The department of health shall include the name of an individual on the registry when it receives notification from an agency of Tennessee state government that the individual has been found by that agency, pursuant to that agency's procedures and definitions, to have committed abuse, neglect, or misappropriation or exploitation of the property of a vulnerable person.

     (2)  Notification shall consist of a copy of an emergency, initial, or final administrative order, a judicial order, or other evidence indicating that the agency has afforded the individual an opportunity for an administrative due process hearing pursuant to the requirements of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3, or equivalent judicial or administrative procedures; provided, that nothing in this part shall require the state agency to establish any new procedures or to modify any existing procedures it may use for the provision of due process to the individual.

     (3)  Notification shall include the individual's last known mailing address, and the agency's definition of abuse, neglect, misappropriation or exploitation of property that it used in making the determination, and any other information that the department determines is necessary to adequately identify the individual for purposes of administrative hearings provided by this part, or to adequately identify the individual when inquiry to the registry is made.

(c)  The department shall also include an individual's name on the registry when it receives a copy of a criminal disposition from the Tennessee bureau of investigation, other federal, state or local law enforcement agency, court, or criminal justice agency, indicating that a criminal disposition against the named individual was the result of an offense against a vulnerable person.

(d)  Upon receiving the notification set out in subsection (b) or (c), the department shall, in addition to entering the individual's name on the registry, also maintain and make available upon request the name of the reporting agency and the applicable definition of abuse, neglect, misappropriation or exploitation of property supplied by that agency. The individual's name, once entered on the registry, shall remain on the registry, except as provided in subsection (g), even if the individual meets the requirements of any criminal disposition, and regardless of any expunction that may be ordered by any court or that may take place by operation of law in connection with the criminal disposition; provided, however, that any expunction reported to the department shall result in the removal from the registry of everything regarding the criminal disposition, except the individual's name, and the department shall destroy any other documentation of the criminal disposition; provided, further, however, that if a person is reported by any state agency pursuant to this part, the identification of the individual as a perpetrator of abuse, neglect, misappropriation or exploitation of a vulnerable person shall not be subject to removal based upon expunction of a criminal disposition.

(e)  Upon entry of this information, the department shall notify the individual, at the individual's last known mailing address, of the individual's inclusion on the registry. Although the individual will not be entitled or given the opportunity to contest or dispute either the prior hearing conclusions, or the content or terms of any criminal disposition, or attempt to refute the factual findings upon which such are based, the individual may challenge the accuracy of the report that such a criminal disposition has occurred, or such hearing conclusions were made or any fact issue related to the correct identity of the individual. If the individual makes such a challenge within thirty (30) days of notification of inclusion on the registry, the commissioner, or the commissioner's designee, shall afford the individual an opportunity for a hearing on the matter that complies with the requirements of due process and the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3.

(f)  If the department receives from the Tennessee bureau of investigation, other federal, state or local law enforcement agency, any court, or criminal justice agency documentation substantiating that an offense against a vulnerable person has been committed by an individual, whose name has not already been placed on the registry pursuant to subsection (b) or (c), the department shall, prior to placing the individual's name on the registry, afford that individual an opportunity for an administrative due process hearing pursuant to the requirements of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3, or equivalent judicial or administrative procedures; provided, however, that nothing in this part shall require the department to establish any new procedures or modify any existing procedures it may use for the provision of due process. If, as a result of the hearing, the department finds the individual committed an offense against a vulnerable person, the department shall include the name of the individual on the registry.

(g)  Any individual's name shall be immediately removed from the registry if:

     (1)  Upon a hearing, the commissioner, or the commissioner's designee, determines that the initial report of a criminal disposition, or the administrative hearing conclusions never occurred; or

     (2)  At the final step taken in an appellate process, a reported conviction, an emergency order, or an administrative hearing result is reversed.

(h)  (1)  A state agency that has placed a person in the registry pursuant to this part may recommend to the department the removal of the person's name if:

          (A)  It finds that the placement of the person's name on the registry was in error; or

          (B)  An advisory group convened by the state agency composed of persons with experience in the subject matter areas of the agency's work, or who by experience or education the agency determines are qualified to provide recommendations to the agency regarding a person's likelihood of committing further acts or omissions that led to the person's placement on the registry determines, based upon evidence presented to the group, that removal of the person from the registry is clearly warranted, then the group may recommend in writing to the agency a waiver and removal of the person from the registry.

     (2)  The final decision regarding the recommendation for removal from the registry shall be made by the state agency and the recommendation shall be reduced to writing, giving the agency's reasons for the decision and sent to the person seeking the waiver.

     (3)  If the decision is to remove the person from the registry, the recommendation shall be sent to the department and the person's name shall be removed by the department.

     (4)  If the person seeking a waiver is dissatisfied with the determination made by the state agency, the person shall be permitted to appeal. The appeal shall be conducted as a contested case hearing pursuant to the Uniform Administrative Procedures Act compiled in title 4, chapter 5, part 3.

     (5)  The decision and the written recommendations of the advisory group and the state agency shall be open for public inspection.

[Acts 1999, ch. 519, § 4; 2004, ch. 780, § 10; 2005, ch. 221, § 1; 2009, ch. 401, §§ 2-7.]